Why Biden’s immigration policy looks a lot like Trump’s

The choice for president in 2020, both candidates said, hinged not just on policy or ideological differences, but on morals. And on one issue their differences were especially distinct: immigration.

Donald Trump’s administration had waged “an unrelenting assault on our values and our history as a nation of immigrants,” Joe Biden’s campaign wrote in 2019. It was an assault he promised not only to stop, but actively to reverse. Harsh Trump-era policies would end, he said. In general, immigrants would be treated with dignity and humanity.

One year later, President Biden has, to a degree, delivered on those promises. But in some important ways, little has changed.

Some of the practices decried by critics as inhumane during the Trump years, such as the separation of migrant children from their families, are effectively still in place, experts and advocates say. Systemic issues with the U.S. immigration system as a whole – including long backlogs, a lack of resources, and an infrastructure designed for outdated migration patterns – have hampered some of the actions President Biden has taken, they add.

“We are building safe, orderly, and humane alternative pathways” into the U.S., said Homeland Security Secretary Alejandro Mayorkas during a visit to El Paso, Texas, last week, the El Paso Times reported. 

“We are rebuilding a system here in the United States that was dismantled in its entirety.”

Here’s a look at immigration under the Biden administration.

Why are people saying not much has changed?

Even before President Trump, the southern border has been synonymous with U.S. immigration policy. But that focus intensified under his administration with efforts to construct a border wall and intentionally punitive policies like the separation of migrant families and the Migration Protection Protocols (MPP), also known as “Remain in Mexico.”

Mr. Trump pointed to a surge in asylum seekers during his administration as justification for his policies. Traffic to the border has only increased since Mr. Biden entered office – migrant encounters in the first quarter of fiscal 2022 more than doubled from the first quarter of fiscal 2021, which in turn was a roughly 70% increase from the start of fiscal 2020. Still, his administration has said they want to tackle the issue with more compassion. 

But on paper and in reality, the Biden administration has changed little at the southern border.

“We’re very disappointed,” says Juliana Macedo do Nascimento, senior advocacy manager at United We Dream, a national youth-led immigrant advocacy group.

“We believed that they would follow through on their campaign promises,” she adds. “They’re just not moving on these things in a bold or fast enough way.”

Republicans, meanwhile, have been hammering Mr. Biden on his immigration policy. Pointing in particular to issues at the southern border, they say he’s not doing enough to keep the country safe and stop the surge in migrants traveling to the country. Rep. Elise Stefanik of New York, the third-ranking House Republican, told the New York Post last month that Mr. Biden is “failing to enforce our rule of law and pouring violent criminals into our communities in the cover of night.”

MPP, implemented by the Trump administration in January 2019, required asylum seekers to stay in Mexico while their claims were being processed. Mr. Biden terminated the program on his first day in office, but a federal judge ruled that the administration ended the program in an unlawful manner. After the U.S. Supreme Court agreed, the administration began to reimplement it late last year.

The administration says it made some changes intended to improve the program, including enabling better access to lawyers, but it also chose to expand it to cover citizens of all countries in the Western Hemisphere. (Before, it had only covered Spanish-speaking countries.) And just like during the Trump years, thousands of asylum seekers are living in squalid, dangerous camps in Mexican border cities.

The Biden administration has also continued the Trump-era Title 42 program, which allows the government to rapidly expel migrants before they can apply for asylum if they come from a country where COVID-19 is prevalent.

Mr. Biden did issue an executive order last week directing federal agencies to review various aspects of U.S. immigration strategy, including Title 42 and MPP. But for Charlene D’Cruz, an immigration attorney who has been representing migrants in Brownsville, Texas, since late 2019, the situation isn’t much different from the Trump years.

“There’s still all sorts of barriers to asylum, even for vulnerable people,” she says. “It’s still not a humane process.”

“When you relegate people into a trench by the border, there is no degree of humanity,” she adds. “There’s no reason why these folks could not be processed through the border and let in to do their asylum cases.”

For those who have been living in the United States, efforts to create permanent pathways to citizenship – particularly for “Dreamers,” those brought to the U.S. as children – have been frustrated as Mr. Biden’s legislative agenda has stalled in Congress.

All told, the situation has exasperated advocates, some Democratic lawmakers – and even members of the Biden administration. 

“It has been frustrating to all of us on the inside, and personally to me,” said Esther Olavarria, deputy director for immigration in the administration’s Domestic Policy Council, during a panel hosted by the Migration Policy Institute (MPI) last month. 

“There is much more that we need to be doing and could be doing.”

Some things have changed though, right?

Yes, but compared with the border policies, those changes have had a less visible effect.

The current administration raised the cap on refugee admissions for this year to 125,000, the highest level since 1993. It also expanded the Temporary Protected Status (TPS) program, which grants protection from deportation and work authorization to immigrants already in the U.S. because their countries are deemed too unsafe to return to. Immigrants from Myanmar and Venezuela are now eligible for TPS, and newer arrivals from Haiti, Somalia, Syria, and Yemen are also newly eligible.

Both moves are in sharp contrast to the Trump administration, which set the refugee admissions cap at 15,000 in its last year, and also sought to reduce or end TPS for many immigrants, only to be blocked by the courts.

Another area where the Biden administration has made a U-turn from the Trump era is on interior enforcement by U.S. Immigration and Customs Enforcement (ICE).

The number of immigrants in ICE detention has decreased in the past year, according to the Transactional Records Access Clearinghouse at Syracuse University (TRAC), because the administration has taken a softer approach toward the estimated 11 million unauthorized immigrants in the country.

Large ICE workplace raids have been ended, and the designation of “sensitive locations” where agents can’t make arrests – like schools, hospitals, and religious institutions – has been expanded.

And while the Trump administration made virtually any individual in the U.S. illegally a priority for arrest and removal, ICE officers have now been instructed to focus on those who pose a national security risk, have been convicted of certain crimes, or recently entered the country illegally. Officers have also been told to make individualized enforcement decisions, meaning they should consider both “aggravating” and “mitigating” factors in an individual’s case when deciding whom to target. 

“It’s a much more nuanced prioritizing [of interior] enforcement than in the past,” says Jessica Bolter, an associate policy analyst at MPI. And the expansions of refugee admissions and TPS, she adds, “are significant legal protections, at least on a temporary basis.” 

The challenge the Biden administration is facing – and will continue to face – however, is ensuring that their policies are implemented effectively in an immigration system with deep systemic problems.

What are the systemic problems? And what can we expect moving forward?

The challenge for every Congress and president in the past few decades has been to overhaul an outdated, under-resourced, and bureaucracy-laden immigration system. 

The system was designed to effectively and efficiently catch and deport adult men crossing illegally from Mexico looking for work. So the shift toward large numbers of families and unaccompanied minors seeking legal asylum in the U.S. has put pressure on the weakest points in America’s immigration infrastructure. Shelter space is nonexistent, and immigration courts have been understaffed and overworked for years. The case backlog in those courts recently reached 1.6 million, the largest it’s ever been – and it’s accelerating, according to TRAC.

The pandemic has exacerbated these backlogs, but so have bureaucratic issues. The pandemic has closed immigration courts around the country, but as of September last year, only about 100 of the country’s 580 immigration judges had been issued laptops allowing them to hold remote hearings, says Mimi Tsankov, president of the National Association of Immigration Judges.

“I don’t doubt the [Justice Department] is working to obtain that technology,” she adds. But “we could be much more effective if we all had that.”

U.S. Citizenship and Immigration Services – which handles visa applications, immigrant benefits programs, and TPS, among other responsibilities – has a backlog of more than 8 million cases. And U.S. consulates, which handle the early stages of refugee admissions, are not yet back to pre-pandemic staffing levels, says Ms. Bolter.

“Some of Biden’s major changes have had their impact stalled a bit because of these backlogs,” she adds. 

Ultimately, the Biden administration’s immigration policy has seen mixed results so far. While its border policies have attracted a lot of attention, and criticism from both left and right, it has quietly made significant changes elsewhere. But as past administrations have found, the U.S. immigration system continues to suffer from decades-old flaws that will frustrate efforts to improve it.

“I don’t want to talk about the Biden administration as a complete failure … because it’s difficult,” says Guadalupe Correa-Cabrera, an associate professor at George Mason University’s Schar School of Policy and Government and an expert on immigration and Mexico-U.S. relations.

“I didn’t expect that all the problems that had been created in a number of years, a number of decades, would be solved in one year.”